Riley Backs Reversing Title I Felton Ruling

Secretary of Education Richard W. Riley declared last week that he
would support reversal of a 1985 U.S. Supreme Court ruling that barred
public school teachers from delivering remedial-education services on
the premises of religious schools.

In a written statement released at a congressional hearing, Mr.
Riley noted that the high court's decision in Aguilar v. Felton
"has caused continuing problems in the Title I program for both public
and private school children who need extra help."

"I therefore support reconsideration of the Felton decision
in an appropriate case," Mr. Riley said.

When Title I was first enacted in 1965, its sponsors evaded
political and constitutional questions about aid to religious
schools--and picked up additional support--by mandating that public
school districts provide services to eligible private school
students.

Since the Felton ruling, districts have had to come up with
costly and often ineffective ways to serve those students, such as
computer-assisted instruction, holding classes in mobile vans, or
transporting students to neutral sites.

Furthermore, federal regulations require that these logistical costs
be deducted "off the top" of each district's entire Title I allocation,
Mr. Riley noted, "which reduces the amount of Title I funds available
for public school children, as well as private school children."

"I believe we must make more effective use of Title I dollars to
support our neediest students in both public and private schools," Mr.
Riley said.

Currying Favor?

Lisa H. Thurau, the executive director of the Committee for Public
Education and Religious Liberty, a New York City-based group that has
sued the Department of Education and the New York City district over
their responses to the Felton decision, contended that Mr. Riley's
statement was part of an effort to gain political favor.

"It strikes me as part of a general theme on the part of the Clinton
administration to mollify conservative [groups] that want to have more
religion in public schools and more public aid to religious schools,"
she said.

"It's disappointing to see Secretary Riley buying into the Bill
Bennett approach on church-state law," said Joseph L. Conn, a
spokes-man for Americans United for Separation of Church and State.

The Washington-based group filed several lawsuits in the 1980's
challenging the way William J. Bennett, then the secretary of education
in the Reagan administration, interpreted the Felton ruling,
particularly the "off the top" rule.

Several federal courts have upheld that rule. With some variations,
federal courts have also approved the use of vans or mobile classrooms.
But advocates of strict church-state separation remain critical of some
popular means of delivering Title I services.

"Bennett turned to the most expensive and inefficient means of
delivering services to parochial-school students," Mr. Conn said.
"There are other ways this could have been dealt with that were much
more common-sense."

Some school districts initially sought to bus eligible
religious-school students to public schools for Title I services, but
many Catholic schools and other private school leaders opposed that
idea.

Logistical Costs

There are inherent tensions in the Title I program--the flagship
federal effort to provide educational services to disadvantaged
students--over resources for public school and private school students,
as evidenced by a recent controversy over the interpretation of new
eligibility rules. (See Education Week, July 12, 1995.)

However, in most communities serving large numbers of Title I
students, educators from both sectors have long agreed that the Felton
ruling has led to logistical nightmares, and most of them would likely
welcome its reversal.

For example, Mr. Riley said that the New York City district has
budgeted $16 million in the 1995-96 school year for noninstructional
costs of complying with Felton, and estimated that 5,600 more children
in the city's public or private schools could receive services if that
expense were eliminated.

"The [Felton] decision took a great program that was sitting
in the nonpublic schools ... and added all these impediments. It's a
logistical headache," said Burt Sacks, the New York City school
system's chief executive for community school district affairs,
outreach and monitoring.

The city's school board voted last spring to pursue a reversal of
the decision. "If the secretary is behind us I think that's great," Mr.
Sacks said.

In ruling on a 1994 case, the justices indicated that a majority of
the current Supreme Court might go along.

In its 6-3 ruling in Board of Education of Kiryas Joel Village
School District v. Grumet, the court held that a separate school
district that had been created to provide special-education services to
children from a Hasidic Jewish village in New York State was an
unconstitutional establishment of religion. (See Education Week, July
13, 1994.)

Reconsidering the Ruling

But in concurring and dissenting opinions, five justices expressed
interest in reconsidering Felton, which had held that the New
York City school district's practice of sending Title I instructors
into religious schools resulted in a "pervasive state presence" in a
religious institution that violated the U.S. Constitution's prohibition
against any government establishment of religion.

The earlier decision disfavored religion and "led New York to favor
it here," Justice Sandra Day O'Connor wrote. "The court should, in a
proper case, be prepared to reconsider Aguilar [v.
Felton]."

Secretary Riley's statement was released at a Sept. 25 Senate
Judiciary Committee hearing on religious liberty. Assistant Attorney
General Walter E. Dellinger, who testified for the Clinton
administration, said he had discussed the Felton case with Mr. Riley
because he anticipated a question about it.

The statement argued that "Title I services can be provided in
private schools without aiding religion or creating excessive
entanglement between government and religion."

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